Calibrated Commitment: The Legal Treatment of Marriage and Cohabitation
Milton C. Regan, Jr.
Georgetown University Law Center
Notre Dame Law Review, Vol. 76, 1435
Increase in and greater acceptance of cohabitation without marriage raise the question whether law should provide comparable benefits to married and unmarried partners. Proponents of such a development argue that a preference for marriage is compatible with contemporary emphasis on individual choice in intimate matters. On this view, law should focus on the substance of a couple's relationship rather than privilege those partnerships characterized by a formal legal tie. Opponents argue that marriage should continue to have privileged status in the law, because blurring the line between married and unmarried partners would undermine marriage as an important social institution. The result, the argument goes, would be less cultural reinforcement of the value of durable commitment in intimate relationships.
This article suggests that neither categorical extension nor denial of marriage-like benefits to cohabiting partners is appropriate. With respect to certain issues, the state's interest in creating incentives or expressing values that favor marriage should permit the law to restrict benefits to spouses. In other cases, these purposes may be outweighed by more important considerations. This means that making decisions about the respects in which unmarried partners should enjoy legal treatment similar to that afforded spouses requires sensitivity to the interests at stake in each instance. This article examines a variety of benefits, and suggests some general rules of thumb about when the legal claims of cohabitors should be honored as if made by spouses.
Date posted: January 9, 2002